Among the provisions of the Dodd-Frank Act are several requirements affecting commodity trading advisors (CTAs), commodity pool operators (CPOs) and investment advisors to private funds. The Securities and Exchange Commission submitted a proposed rule on systemic risk reporting requirements for private fund advisers including hedge funds, CPOs and CTAs in February 2011; the rules became finalized in October 2011.

The Commodity Futures Trading Commission participated in the joint rulemaking with the SEC on the reporting requirements, and also proposed its own rules on certain compliance aspects for CPOs and CTAs. These rules were finalized in February 2012.

On April 8, 2013, a CFTC final rule was published in the Federal Register that clarifies certain supervisory responsibilities of swap dealers and major swap participants.[1] Under the rule, each swap dealer (SD), major swap participant (MSP), and other Commission registrant with whom an associated person (AP) is associated is required to supervise the AP and is jointly and severally responsible for the activities of the AP with respect to customers common to it and any other SD, MSP or other Commission registrant. To view the final rule, click HERE.

On January 23, 2014, the National Futures Association (NFA) issued a request for comment from its members on the possibility of adding capital requirements and other customer protection measures. The deadline for comment is April 15, 2014.

NFA regularly reviews the continued effectiveness of its regulatory requirements. Over the past three years, NFA has issued 26 Member Responsibility Actions (MRAs), and 92% of those MRAs were against CPO and/or CTA Members. Most of these matters involved misuse of customer funds (including one CPO that improperly used pool funds because it had insufficient assets to operate as a going concern) and/or misstating net asset values and/or performance information. In light of these actions, NFA is reviewing the current regulatory structure applicable to CPO and CTA operations. In particular, NFA is looking at ways to strengthen the regulatory structure governing CPO operations to provide greater protection for customer funds. Additionally, NFA is exploring ways to ensure that CPOs and CTAs have sufficient assets to operate as a going concern. NFA's Executive Committee approved the issuance of this request for comments to solicit CPO and CTA Member input on the concept of imposing a capital requirement on CPO/CTA Members and other customer protection measures. For more information, click HERE.

No-Action Relief

On October 12, 2012, the commission issued guidance indicating that neither real estate investment trusts (REITs) nor securitization funds would be considered "commodity pools" under its rules. However, a commodity pool operator that operates a securitization vehicle would still be required to register with the commission as such. Since the commission is continuing to work with the securitization industry to discuss and further refine compliance rules regarding securitization vehicles, on March 29, 2013, the commission issued no-action relief until June 30, 2013 for CPOs who operate securitization vehicles.

On November 30, 2012, the CFTC issued no-action relief to CPOs operating funds of funds until June 30, 2013, or until the commission submits guidance on applying the de minimis thresholds to such funds of funds.

Final Rules, Conforming Amendments, August 2012

On August 23, 2012, the CFTC issued a final rule that amends Part 4 of its regulations to reflect changes made to the CEA by the Dodd-Frank Act. Dodd-Frank redefined the terms “commodity pool” “commodity pool operator” and “commodity trading advisor” to include involvement with swaps activities and transactions.

Note: Subsequent to the final rule, on November 29, 2012, the commission issued a no-action letter clarifying that the Part 4 regulations do not apply to a CPO that is a family office. However, the relief is not self-executing, meaning that an eligible CPO must file a request for relief with the commission. [2]

Under the rules, larger private fund advisers managing hedge funds, "liquidity funds" (i.e., unregistered money market funds), and private equity funds would be subject to heightened reporting requirements. Large private fund advisers would include any adviser with $1 billion or more in hedge fund, liquidity fund, or private equity fund assets under management. All other private fund advisers would be regarded as smaller private fund advisers and would be subject to lesser reporting requirements. Information reported on Form PF would remain confidential, unlike Form ADV which is available to the public.[3][4]

The systemic risk reporting rule was done in accordance with Title I (Financial Stability Oversight Council) and Title IV (Investment Advisers) of the Dodd-Frank Act. According to Dodd-Frank, private funds who may have previously sidestepped registration and reporting would be required to periodically report certain information to regulators, depending upon:

the amount of assets under management,

use of leverage,

counterparty credit risk exposure,

trading and investment positions, and

the proposed registration, reporting, and compliance requirements.

At a CFTC open meeting on January 26, 2011 and an SEC open meeting on January 25, 2011, a joint rulemaking was proposed, including amendments to the compliance obligations that require CPOs and CTAs registered solely with the CFTC to file similar reports, among other changes. The public comment period closed on April 12, 2011.

On February 27, 2012, the CFTC Division od Swap Dealer and Intermediary Oversight issued a letter of guidance to the National Futures Association (NFA) regarding the CFTC Retail Forex rules and performance disclosure by CPOs and CTAs. According to the letter:

"It is the Division’s view...that a Forex CTA is required to disclose past performance for the period beginning October 18, 2010, or, if later, the date on which the Forex CTA first began exercising discretionary trading authority over accounts engaged in retail forex transactions. From and after October 18, 2015, the period of time described in Regulation 4.35(a)(5) (five most recent calendar years and year-to-date or life of the trading program, if shorter) would apply.

"If a Forex CTA elects to include in its Disclosure Document past performance information for any time prior to October 18, 2010, we believe that in order to avoid “cherry picking” the presentation of such information should encompass the entire period set forth in Regulation 4.35(a)(5) and should include all of the accounts over which the Forex CTA exercised discretionary trading authority during that period."

CFTC Final Rules, Compliance Obligations of CPOs and CTAs

On February 9, 2012, the CFTC issued its final rulemaking regarding CPO/CTA compliance obligations. The final rule rescinds the registration exemption for "qualified eligible persons," modifies the criteria for claiming relief under section 4.5, requires the annual filing of notices claiming exemptive relief, and adopts amendments that include new risk disclosure requirements for CPOs and CTAs regarding swap transactions.

Also on February 9, 2012, the commission issued a proposed rule and request for comment on the harmonization of compliance obligations for registered investment companies that are required to register as CPOs. The deadline for public comment is April 24, 2012. To view the proposed rule, click HERE.

CFTC Staff Roundtable on Changes to Registration and Compliance Requirements for CTAs and CPOs, July 6, 2011

On July 6, 2011, the CFTC held a public roundtable to discuss issues related to registration and compliance regime for commodity pool operators and commodity trading advisors. Issues addressed:

The scope of changes to Commission Regulation 4.5 - thresholds, marketing restrictions, and alternatives to the proposal;